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English v. Aramark Corp.

United States District Court, S.D. Texas, Houston Division

May 20, 2019




         The plaintiff, Jake Anthony English, also known as Lloyd Delaney (former TDCJ #02215301, former SPN #01222980), filed this lawsuit in state court while he was in custody at the Harris County Jail. The plaintiff alleges that Aramark Corporation violated the Texas Deceptive Trade Practices Act (“DTPA”) in connection with his purchase of a pair of “shower shoes” from the Harris County Jail commissary, which is operated by Aramark Correctional Services, LLC (collectively, the “defendants”). Asserting diversity of citizenship under 28 U.S.C. § 1332, the defendants removed the plaintiff's lawsuit to this Court. The defendants have now filed a motion for summary judgment [Doc. # 30]. The plaintiff has filed more than one response to the defendants' motion [Docs. # 31, #33]. He has also filed a motion for a continuance to conduct discovery [Doc. # 32]. The defendants have filed a reply [Doc. # 37], to which the plaintiff has filed a sur-reply [Doc. # 39]. After considering all of the pleadings and the applicable law, the Court will grant the defendants' motion for summary judgment and dismiss this case for reasons set forth below.

         I. BACKGROUND

         On April 9, 2018, the plaintiff filed a complaint against the defendants alleging a violation of the DTPA, citing Tex. Bus. & Com. Code §§ 17.45(4), 17.50(a)(1), and other provisions, in connection with his purchase of a pair of shoes from the commissary at the Harris County Jail (the “Jail”).[1] The plaintiff also filed a supplemental complaint, asserting that he was a consumer who was harmed by goods sold by the defendants at the Jail.[2] Because the plaintiff did not include any specific allegations in support of his claim, the Court requested a more definite statement pursuant to Fed.R.Civ.P. 12(e) to further supplement his pleadings.

         The plaintiff alleges that, while in custody as a pretrial detainee at the Jail on November 15, 2016, he purchased a pair of shoes from the Jail commissary for $2.29 for use in the shower.[3] The shoes were listed in “number 8076” of the “Commissary Menu” of items for sale as a “shower shoe V-strap XL, ” but identified as “thong sandals” on his receipt.[4] He describes the shoes as “white in color with a spongy sole” and a “very narrow strap” made of “black rubber flexible material.”[5] The same day that the plaintiff purchased these shoes he wore them in the shower.[6] While showering, one of the shoes “became lodged or stuck to the shower surface.”[7] When he attempted to move his foot, the black rubber strip dislodged from the rest of the shoe and he slipped, falling backwards onto the concrete surface of the shower.[8]

         The plaintiff claims that he hurt his back and hip.[9] He was treated at the Jail infirmary with Ibuprofen, Naproxen, a heating pad, and extra strength Tylenol.[10]After he was convicted and transferred to the Texas Department of Criminal Justice (“TDCJ”), the plaintiff sought additional treatment for lower back pain and numbness.[11] X-rays reportedly revealed a herniated disc in his lumbar spine.[12]

         The plaintiff claims that the defendants violated the DTPA because the shoes he purchased were represented on the Jail Commissary Menu printed by “Aramark” as a “shower shoe.”[13] The plaintiff maintains that this representation was false and misleading because he slipped and fell in the shower while wearing them, even though the product was advertised as a “shower shoe.”[14] He clarifies that his “intention was to purchase a shoe product that was adequate and safe to be worn in the shower for foot protection.”[15] By advertising the product as a “shower shoe, ” the plaintiff assumed that they were “safe for such use.”[16] Instead, the plaintiff claims that the shoes he purchased were simply “thong sandals, ” which were not safe.[17] Alleging that he relied on the defendants' misrepresentation to his detriment, the plaintiff appears to seek $100, 000.00 in compensatory damages for his pain, disability, mental distress, loss of earnings, and medical expenses incurred and in the future, as well as for “past and future” disfigurement and impairment.[18]

         The defendants move for summary judgment, arguing that the plaintiff's claims are barred because he failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act (the “PLRA”), 42 U.S.C. § 1997e(a). The defendants argue further that the plaintiff does not demonstrate a valid claim under the DTPA. Although the plaintiff has filed more than one response to the motion, he has also requested a continuance to conduct discovery.[19] That motion is denied because the plaintiff does not allege what discovery he intends to pursue or show how it would raise a genuine issue of material fact under the governing standard of review.[20]


         The defendants move for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Under this rule, a reviewing court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is “material” if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is “genuine” if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id.

         If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the non-movant to provide “specific facts showing the existence of a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A reviewing court “must view the evidence introduced and all factual inferences from the evidence in the light most favorable to the party opposing summary judgment[.]” Smith v. Regional Trans. Auth., 827 F.3d 412, 417 (5th Cir. 2016). However, a non-movant cannot avoid summary judgment simply by presenting “conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” Jones v. Lowndes Cnty., Miss., 678 F.3d 344, 348 (5th Cir. 2012) (quoting TIG Ins. Co. v. Sedgwick James of Washington, 276 F.3d 754, 759 (5th Cir. 2002)); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (a non-movant cannot demonstrate a genuine issue of material fact with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence).


         A. Exhaustion of Administrative Remedies

         The defendants argue that this case should be dismissed because the plaintiff did not exhaust available administrative remedies with respect to the shower shoes that he purchased at the Jail on November 15, 2016. Because the plaintiff filed this lawsuit while incarcerated, his case is governed by the PLRA, which prohibits any action by a prisoner in federal court concerning “prison conditions” until “such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement found in § 1997e(a) applies to all inmate suits about prison life, “whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The Supreme Court has emphasized that § 1997e(a) mandates exhaustion of all administrative procedures before an inmate can file any suit challenging prison conditions. See Booth v. Churner, 532 U.S. 731, 739 (2001); Woodford v. Ngo, 548 U.S. 81, 85 (2006); see also Jones v. Bock, 549 U.S. 199, 212 (2007) (confirming that “[t]here is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court”).

         The Harris County Jail has a two-step grievance process that includes an initial grievance, followed by an appeal. The plaintiff alleges that he filed an initial grievance regarding the alleged DTPA violation in connection with the shower shoes that he purchased at the Jail, but that his grievance was “denied due to the fact that it was not a grievable issue.”[21] He did not file an appeal. Instead, on January 20, 2018, the plaintiff sent a “Notice of Intent to Sue” to Aramark Corporation, advising them of his claims under the DTPA.[22]

         Because officials at the Jail determined that the issue raised by the plaintiff was not redressable through the grievance process, the defendants fail to show that he was required to press his claim any further.[23] In that regard, an administrative procedure that cannot provide any relief or that lacks authority to take any action in response to a complaint does not provide an “available remedy” for the purposes of exhaustion under the PLRA. See Dillon v. Rogers, 596 F.3d 260, 267 (5th Cir. ...

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